Examining the Legal Instruments of the Malabo 2014 Conference: Implications and Significance of Ratification for Kenya

May 29, 2023 - Reading Time: 6 minutes - By Waceera Kabando

President William Ruto stated that Kenya would ratify one of the Malabo Treaties (2014) focusing on empowering the Pan-African Parliament to be a proficient legislative organ of the African Union (AU) by September 2023. This arm of the AU only has advisory and consultative powers as far as its mandate is concerned. With an aim to create a platform for African leaders to engage in continental legislation, only 15 states have ratified it close to a decade since its adoption.

Channelling Eddard Stark’s (fictional character from the drama TV series Game of Thrones) sentiments, “the lone wolf dies but the pack survives”, the establishment of the Organisation of African Unity (OAU) in 1963 aimed at intergovernmental organisation primarily focused on coordination and cooperation of the African states as well as eradication of all forms of colonialism. In 2002, the AU replaced the OAU but has carried on some if not all the founding principles of Kenya’s first President Jomo Kenyatta, Muammar Gaddafi, Kwame Nkrumah and Haile Selassie among others. Sixty years later, the fight for an independent Africa still stands, only we now suffer from neocolonialism and strained unity, all traumas of the establishment of imperial rule.

In 2014, the AU during its 23rd Summit adopted six legal instruments anchored on the foundations set in history and Agenda 2063: The Africa We Want. Some of these treaties have been signed and ratified by a simple majority, 15 or half of the 55 member states in some cases, some have not thus staggering the continent’s advancement. States express their consent to be bound to the treaties by way of a signature subject to ratification or depositing instruments of accession. The period between signing and ratification is usually to ensure there is cohesion at a national level before enactment internationally.

 

Overview of the Treaties

  1. Protocol on establishment of the African Monetary Fund

With 12 signatures, one ratification and one accession (Kenya not having made any move on this), this treaty seeks to boost Africa’s economy by breaking from the shackles of first-world countries, the International Monetary Fund and World Bank for financial dependency.

The amount of debt Kenya and Africa as a whole are in is crippling and may see no end in the near future. Nonetheless, Africa has the resources and expertise to be self-sufficient save for the lack of implementation of proposals such as these. A great example would be the Latin-American Reserve Fund which has helped its recipient countries maintain intra-regional trade agreements by providing its members with financial support during the balance of payments crises.

  1. African Convention on cross-border cooperation (Niamey Convention)

The rationale behind this proposal is to give African states a legal framework to develop and implement cross-border cooperation initiatives. This would see the elevation of border governance shift from a preventive to a proactive angle promoting regional/continental integration thus boosting the socio-economic needs of the local communities. Relatively, this would be highly useful with the anticipated reopening of the Kenya-Somali border after 12 years.

This has 18 signatures, six ratifications and six deposits of accession, Kenya not being any of them.

  1. African Union Convention on cyberspace security and protection of personal data

Kenya is not among the 18 signatures, 14 ratifications or 14 accessions bound by this treaty so far.

This was drafted to establish a credible framework for cybersecurity in Africa through the organisation of electronic transactions, protection of personal data, promotion of cyber security, e-governance and combating cybercrime. The concepts introduced are such as the adoption of a necessary legal framework to combat cybercrimes, enhance data protection and support electronic transactions.

Kenya has been at the forefront, however, in implementing a Data Protection Act (2019) that established the Office of the Data Protection Commissioner, Computer Misuse and Cybercrimes (2018) which provides for cybercrime offences among others.

  1. African Charter on the values and principles of decentralisation, local governance and local development

With 18 signatures, eight ratifications and eight accessions, Kenya has not shown any movement towards this proposal.

This is an attempt to provide a framework for democratic local governments and empower them to improve service delivery and promote accountable governance. Briefly, the proposal touches on:

  •         Revenue raising – taxation, borrowing and public-private partnerships are to be decentralised to the local governments.
  •         Intergovernmental transfers – there is a stable framework for the transfer of funds from the central government to the local governments. This would be key for Kenya to implement as it is a persistent itch within devolution.
  •         Natural resources – in the exploitation of natural resources by the central government, the affiliate local governments and communities must benefit from the proceeds.
  •         Financial and administrative autonomy – local governments would have full control of their financial resources and administration with the central governments only overseeing their management and offering administration and technological support. 
  1. Protocol on amendments to the protocol on the statute of the African Court of Justice and Human Rights

This provides for the inclusion of criminal jurisdiction within the scope of the proposed African Court of Justice and Human Rights (ACJHR) which is to sit in Arusha, Tanzania. Only 15 states have signed but no ratifications have been deposited so far. Ideologically, this move may be seen as a restoration from neocolonial systems within the judicial sector where leaders are subjected to the International Criminal Court (ICC). However, as tantalising as that may sound to liberal thinkers, we may be putting the cart before the horse.

  •         Heads of State, governments and senior officials, in the proposal, will be immune to prosecution and investigation before this court unlike in the ICC. The rationale behind this is nerve-racking as those in these positions have historically had a hand in abusing their powers contrary to international laws. This forces one to wonder if the Rule of Law applies.
  •         The ICC has 18 judges and its jurisdiction revolves around genocide, crimes against humanity, war crimes and crimes of aggression but there exists a shortfall of expertise, capacity and resources to serve justice at times. It, therefore, pokes one’s understanding behind the proposal to have 14 crimes with the possibility of adding others under the jurisdiction of ACJHR and only 16 judges. What is the feasibility test done on this?
  •         As is the norm, legal instruments ought to be precise, plain and concise. The opposite is the reality when it comes to definitions such as ‘unconstitutional change of government’ and ‘terrorism’. This vagueness may promote injustice to causes that are for the betterment of the continent and may be seen as an attempt to indirectly dictate a democratic state.
  •       A proposed reduction of judges seating in human rights matters from 11 to five may have deleterious effects.
  •         Civil society organisations may lose access to this court and this is in contradiction to the right to justice, fair hearing and legal representation.
  •         The African Union may not have the necessary funding to implement and run these proposals. Would this mean more taxation for the citizens? At what point does the ICC lose its jurisdiction over African matters or does the financial burden double? 
  1. Protocol to the Constitutive Act of the African Union on the Pan-African Parliament (PAP)

Signed by 23 states, ratified by 14 and accession deposited by another 14, this proposal seeks to establish the PAP, an organ of the AU in order to ensure the full participation of African peoples in the development and economic integration of the continent. Despite the recent crisis in leadership, the motive behind this treaty is to bring regional cohesion and also act as a check and balance for the continent’s leadership as a whole in driving Agenda 2063. 

President Ruto signed this protocol of 24th July making way for his , and other senior state officials’,  immunity against potential international crimes he may commit while serving as president. This has been taken as an aspersion to victims of international crimes by the civil society. The Kenya Human Rights Commission (KHRC) and Muslims for Human Rights (MUHURI) have addressed their concerns over the push to sign and ratify this. Despite Kenya’s obligation to the Rome Statute to hold those accused of crimes against humanity accountable and report them to the International Criminal Court, this move is contradictory and make cause complexities on an international level. This means, there is a need to review the move.

Commendations and recommendations

Before committing to the treaties, it is important that we evaluate the domino effect of these proposals and forward amendments before they come into force or state reservations upon ratification if no amendments are made.

On decentralised and local governments, it is highly advantageous as this bottom-up democratic governance would go hand-in-hand with Kenya Kwanza’s Bottom-Up Economic Transformation Agenda.

Parameters should be enforced where sensitive matters such as funds and data are concerned. The creation of the African Monetary Fund should be focused on the region’s economic development and cushions from bad debts and/or economic strain.

 

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